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EGBE v. STATE (2020)

EGBE v. STATE

(2020)LCN/14324(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Thursday, June 18, 2020

CA/E/21C/2019

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Between

ANDREW IGBOJI EGBE APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

CONDITIONS TO BE SATISFIED FOR A STATEMENT OF A DECEASED WHOSE CAUSE OF DEATH IS IN QUESTION IN ANY PROCEEDINGS INCLUDING A TRIAL FOR MURDER TO BE ADMISSIBLE

Thus it is well settled that in a trial for murder such as the instant case, a statement made by the deceased as to the cause of his death or as to the circumstances of the events which resulted in his death is admissible as a dying declaration when the cause of death is in question. For a statement of a deceased whose cause of death is in question in any proceedings including a trial for murder to be admissible, the following conditions must be satisfied (1) The cause of death of the deceased must be in question in the proceedings (2) The statement must relate to the cause of death of the deceased person or as to circumstances of the events which resulted in his death. (3) The deceased at the time of making the statement must have believed himself to be in danger of approaching death although he may have entertained at the time of making the statement hope of recovery. In OKEREKE V. STATE (2016) LPELR – 40012 (SC) AT 32 – 33 (B – A) the Supreme Court Per ARIWOOLA, J.S.C. held that:
“In Akpan vs State (1992) 6 NWLR (Pt.248) 439 this Court on the statement made by someone on sick bed held as follows: “…it is well established in our law of evidence that a statement made by a person in imminent fear of death and believing at the time it was made that he was going to die is admissible as a dying declaration.” See also; Akinife Vs The State (1988) 3 NWLR (Pt.83); Okokor Vs The State (1967) NMLR 189. PER BOLAJI-YUSUFF, J.C.A.

WAYS THE PROSECUTION CAN ESTABLISH A CASE BEYOND REASONABLE DOUBT

In order to establish its case beyond reasonable doubt as required by Section 135(1) and (2) of the Evidence Act, the prosecution must adduce cogent and credible evidence to prove that the accused was the person or one of the persons that committed the offence charged. The prosecution can discharge the burden of proof by (a) evidence of an eye – witness who saw the commission of the offence or (b) by voluntary confession of the accused person or (c) by circumstantial evidence. See among the plethora of authorities on this principle of law. STATE V. YAHAYA (2019) 13 NWLR (PT. 1690) 397 AT 416 (D – G) 433 (B – D). In the instant case, the appellant was tried and convicted for murder. It is settled that on a charge of murder, the prosecution must prove the following ingredients of the offence beyond reasonable doubt:
(1) The death of a human being
(2) That it was the act of the accused that caused the death of the deceased.
(3) That the act of the accused which caused the death of the deceased was intentional and that it was with the knowledge that it would result in death or that grievous bodily harm would be probable consequence of the act of the accused person.
See ITODO V. STATE (2020) 1 NWLR (PT. 1704) 1 AT 25 (C- F) 41- 42 (F- F).PER BOLAJI-YUSUFF, J.C.A.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ebonyi State delivered in charge no. HAB/1C/2015 on 16th June, 2016. Wherein the Appellant was convicted for murder and sentenced to death by hanging. He was charged and tried on a one Court charge of murder of Simon Ndugo contrary to Section 319 (1) of the Criminal Code Law, Cap. 33 Volume 1, Laws of Ebonyi State, 2009. The Prosecution alleged that the appellant and the deceased attended a child dedication party held at Iruka Orji Compound in Ndikoko Igbeagu Izzi, Izzi Local Government Area of Ebonyi State between 29th December and the night of 30th December, 2013. The appellant and the deceased quarrelled over a debt which the deceased owed the appellant. The appellant hit the deceased with a big stick on his head. The deceased fell down and blood started rushing out of his nose and mouth. The appellant was advised to take the deceased to hospital for treatment. When the appellant failed to take the deceased to the hospital, the villagers on the instruction of their traditional ruler contributed money and took the deceased

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to the hospital. The deceased died in the hospital on 7th January, 2014.

The prosecution called five witnesses including the investigating police officer (IPO) and the doctor who performed an autopsy on the body of the deceased. The appellant testified in his own defence and called no other witness. The Court in its considered judgment delivered by Honourable Justice A. N. Nwankwo found the appellant guilty as charged and sentenced him accordingly.

Being dissatisfied with the judgment, the appellant filed a notice of appeal against the judgment on 25/7/2016. The seven grounds of appeal in the said notice of appeal on pages 125 – 130 of the record without their particulars are as follows:
GROUND ONE
“The trial Court erred in law by holding that there was no possibility that the injury sustained by the deceased was self inflicted.
GROUND TWO
The trial judge erred in law by holding that the prosecution proved beyond reasonable doubt that the death of the deceased resulted from the act of appellant.
GROUND THREE
The said trial Court admitted contradictory evidence of the prosecution, acted and relied on the

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evidence of the PW3 as to dying declaration of the deceased and Exhibit B to convict the appellant.
GROUND FOUR
The said trial Court erred in law by acting on and relying on the appellant’s confessional statement, Exhibit B to convict the appellant.
GROUND FIVE
The said trial Court erred in law by relying on and considered the confessional statement of the appellant where same incriminated the appellant and the trial Court failed to consider the part of same that shows defence.
GROUND SIX
The trial Court erred in law to have convicted the appellant on the ground that the defence of provocation does not avail the appellant without considering the appellant’s station of (sic)life.
GROUND SEVEN
The trial Court erred in mixed law and fact on the finding of facts and failed to properly evaluate the evidence.”

The appellant’s brief was filed on 18/4/19. It was deemed as properly filed and served on 10/3/20. The respondent’s brief was filed on 30/4/19. It was deemed as properly filed and served on 6/5/20.

​The appellant presented the following issues for the determination of this

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appeal:
1. “Whether the trial Court was right to have relied on the evidence of the PW3 as a dying declaration of the deceased to convict the appellant.
2. Whether the trial Court was right to have convicted the appellant for murder on acting and relying on the appellant’s confessional statement, Exhibit B.
3. Whether the trial Court was right to have held that self defense or defence of provocation or any other external (sic) does not avail the appellant.
4. Whether the trial Court was right to have held that the prosecution has proved his case beyond reasonable doubt to convict the appellant for offence of murder and the evidence properly evaluated.”

The Respondent presented the following lone issue for the determination of this appeal:
“Whether during trial, the prosecution successfully proved the ingredients of murder against the appellant to have achieved the conviction and sentence of death here to referred?”

I have considered the grounds of appeal and the issues presented for determination by counsel to both parties. Issue 4 of the appellant and the lone issue of the respondent are the

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same though couched in different words. I find those issues apt for the determination of this appeal. For avoidance of doubt, the issue is whether the prosecution proved all the ingredients of the offence of murder beyond reasonable doubt to warrant the conviction of the appellant for murder.

​It is the contention of the appellant that PW3’s evidence that “I asked Simon Ndiugo what happened, he told me that the accused person is disturbing him about debt and that it led to a fight between him (deceased) and accused. The deceased person told me that the accused hit his head with something” does not amount to a dying declaration since the deceased did not believe that he was at the point of death. On what amounts to a dying declaration, counsel referred to EZEUKO V. STATE (2016) 10 WRN 1 AT 12 (14). It is also the contention of the appellant that the Court below ought to have attached no probative value to the appellant’s confessional statement as the corroborative evidence of PW1, PW2 and PW3 are hearsay, contradicted the confessional statement and they also contradicted each other. Counsel argued that since the evidence of PW1, PW2

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and PW3 are hearsay and contradicted each other, there is nothing outside the confession to show that it is true and the Court ought not to have relied on it to convict the appellant. On when the Court can convict an accused on a confessional statement, he referred to OMORUYI V. STATE (2014) 32 WRN 45 AT 55 (15). IKPO V. STATE (1995) 12 SCNJ 564 AT 554 (E-F).

​It is the further contention of the appellant’s counsel that the defences of provocation or self defence avails the appellant since it is stated in the confessional statement that the deceased held the appellant’s penis until the appellant fainted and when he recovered, he hit the deceased with a stick once to defend himself from another attack. Counsel submitted that the assumption of the trial judge that the action of the appellant in attacking the deceased was not in the heat of the moment is not bone of the evidence on record and the Court failed to differentiate between prevocational act and the killing when no enough time had lapsed for passion to cool down. He submitted that the Court ought to have taken into consideration the fact that this involves the manhood of a primitive

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illiterate farmer. He referred to OMORUYI V. STATE (SUPRA). He further submitted that the appellant had no intention to kill the deceased and there is no evidence that the appellant knew that his conduct would reasonably likely to cause the death of the deceased. He finally submitted that the contradictions in the evidence of the prosecution’s witnesses rendered their evidence unreliable and where there is a doubt in the case of the prosecution, it must be resolved in favour of the accused. He referred to SANI V. STATE (2015) 38 WRN 55 AT 59. OKAFOR V. EJIOGU (2011) 49 WRN 88 AT 96 (8). AJAYI V. IDOWU (2011) 30 WRN 80 AT 85 – 86 (2).

In response, the respondent’s counsel submitted that the evidence of PW1 – PW5 and exhibits A – E are sufficient proofs of the death of the deceased Simon Ndugo and that it was the act of the appellant that caused the death. On the ingredients to murder, he referred to OGBA V. THE STATE (1992) 2 NWLR (PT. 222) 164 AT 382. GIRA V. THE STATE (1996) 4 NWLR (PT. 443) 374 AT 377. Section 316 of Criminal Code Law of Ebonyi State, 2009. Counsel submitted that the law imputes to a person who fully

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commits a criminal act an intention to do everything which is the probable consequence of the act constituting the corpus delicti which actually ensues and this inference arises irrespective of the particular consequence which ensued being or not being foreseen by an accused and whether his conduct is reckless or the reverse and the test of foresight is not what the accused saw, but what a reasonable prudence man would have foreseen. He referred to UMORU V. STATE (1990) 3 NWLR (PT. 118) 36 AT 370. NWALI V. STATE (1991) 3 NWLR (PT. 182) 663 AT 676. Counsel further submitted that the prosecution’s case as a whole inclusive of exhibits A and B irresistibly point to no other conclusion than that it was the act of the accused person that caused the death of the deceased because the natural and probable consequence of hitting the deceased with stick on his head as highlighted in the medical report, is death and intent to kill is a necessary inference to be drawn from the act of the appellant. He referred to BABUGA V. THE STATE (1996) 7 NWLR (PT. 360) 282 (2). MOHAMMED V. THE STATE (1991) 5 NWLR (PT. 192) 438 AT 442 (4). ODU V. STATE (2000) 7 NWLR (PT. 664) 286 (5).

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On the issue of the defences available to the appellant, counsel submitted that the appellant abandoned the defences in his oral testimony and none of the ingredients of self defence was established by the appellant. On what must be established to sustain a defence of self defence, counsel referred to LIYA V. STATE (1998) 2 NWLR (PT. 538) 397. KWAGSHIR V. STATE (1995) 3 NWLR (PT. 384) 386. NWAMBE V. STATE (1995) 3 NWLR (PT. 384) 385. SULE V. STATE (2009) 17 NWLR (PT. 1169) 33 AT 66. He finally submitted that the Court below rightly convicted the appellant for murder based on the confessional statement, Exhibit B which is reliable, direct, positive and confirmed by PW3’s evidence. He urged the Court to dismiss the appeal.

RESOLUTION:
In order to establish its case beyond reasonable doubt as required by Section 135(1) and (2) of the Evidence Act, the prosecution must adduce cogent and credible evidence to prove that the accused was the person or one of the persons that committed the offence charged. The prosecution can discharge the burden of proof by (a) evidence of an eye – witness who saw the commission of the offence or (b) by

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voluntary confession of the accused person or (c) by circumstantial evidence. See among the plethora of authorities on this principle of law. STATE V. YAHAYA (2019) 13 NWLR (PT. 1690) 397 AT 416 (D – G) 433 (B – D).

In the instant case, the appellant was tried and convicted for murder. It is settled that on a charge of murder, the prosecution must prove the following ingredients of the offence beyond reasonable doubt:
(1) The death of a human being
(2) That it was the act of the accused that caused the death of the deceased.
(3) That the act of the accused which caused the death of the deceased was intentional and that it was with the knowledge that it would result in death or that grievous bodily harm would be probable consequence of the act of the accused person.
See ITODO V. STATE (2020) 1 NWLR (PT. 1704) 1 AT 25 (C- F) 41- 42 (F- F). There is no controversy between the parties as to whether Simon Ndugo died. Exhibits A, the medical report tendered by PW4 and exhibits D – D5, the photographs of the deceased confirmed the death of the deceased. The crux of the appeal is whether it was the act of the appellant that

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caused the death of the deceased. From the evidence on record, none of the witnesses called by the prosecution witnessed the actual attack on the deceased by the appellant. Under cross – examination, PW1, PW2 and PW3 confirmed the fact that they were not present when the appellant hit the deceased on his head with a stick. PW1 said it was Iruka Orji that told him that the appellant hit the appellant on his head with a stick. No doubt that is hearsay evidence which is not admissible by virtue of Sections 37 and 38 of the Evidence Act. PW2 said he was present when PW3 asked the appellant why he hit the deceased with a stick and the appellant replied that the deceased owed him money. In so far as the evidence is aimed at proving that the appellant hit the deceased on his head with a stick, it is hearsay and inadmissible. However, the evidence of PW1,PW2 and PW3 that they saw the deceased lying on the ground when they got to the scene of the crime and saw blood coming out from the mouth of the deceased while the appellant stood there is not hearsay. It is the evidence of what they saw with their own eyes. PW3 said when he arrived at the scene he asked the

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deceased what happened. The deceased told him that he and the appellant were fighting over debt and the appellant hit him (deceased) on the head with something. Ordinarily, the testimony of PW3 as to what the deceased told him about what happened between the deceased and the appellant and how the appellant hit him on his head with something would amount to hearsay evidence and not ordinarily admissible, but Section 40 of the Evidence Act, 2011 makes a statement by a deceased person as to the cause of his death or the circumstances of the events which resulted in his death made at the time when he believed he was in danger of approaching death admissible in any proceedings in which the cause of death of the deceased person comes into question. Section 40 of the Evidence Act, 2011 provides that:
40. (1) “A statement made by a person as to the cause of his death, or as to any of the circumstance of the events which resulted in his death in cases in which the cause of that person’s death comes into question is admissible where the person who made it believed himself to be in danger of approaching death although he may have entertained at the time of

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making it hope of recovery.
(2) A statement referred to in subsection (1) of this section shall be admissible whatever may be the nature of the proceeding in which the case of death comes into question.”
In EZEKWE V. STATE (2018) LPELR – 44392 (SC) AT 9 – 11 (E – C) the Supreme Court Per KEKERE-EKUN ,J.S.C at 25-26 (C-B ) held that:
“It is well established in the law of Evidence that a statement made by a person in imminent fear of death, and believing at the time it was made that he/she was going to die, is admissible as a dying declaration. See Section 40(1) of the Evidence Act, 2011. See also: Akpan vs. The State (1992) 6 NWLR (Pt.248) 439; Okoro v. The State (2012) 1 SC (Part 1) 1; (2012) 4 NWLR (Pt.1290) 351. In Okereke v. The State (2016) LPELR – 40012 (SC) @ 37 – 38 F-C, this Court held: “A dying declaration is an exception to the hearsay rule. It is a declaration of someone at the point of death, whose hope of life is gone when the motive for falsehood is no longer there and the mind is compelled by the most powerful consideration of the impending unknown to speak the truth.” See also: Chukwuemeka Ezeuko (alias Rev King) vs. The State

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(2016) LPELR – 400 46 (SC) @ 58 A-B.”
Thus it is well settled that in a trial for murder such as the instant case, a statement made by the deceased as to the cause of his death or as to the circumstances of the events which resulted in his death is admissible as a dying declaration when the cause of death is in question. For a statement of a deceased whose cause of death is in question in any proceedings including a trial for murder to be admissible, the following conditions must be satisfied (1) The cause of death of the deceased must be in question in the proceedings (2) The statement must relate to the cause of death of the deceased person or as to circumstances of the events which resulted in his death. (3) The deceased at the time of making the statement must have believed himself to be in danger of approaching death although he may have entertained at the time of making the statement hope of recovery. In OKEREKE V. STATE (2016) LPELR – 40012 (SC) AT 32 – 33 (B – A) the Supreme Court Per ARIWOOLA, J.S.C. held that:
“In Akpan vs State (1992) 6 NWLR (Pt.248) 439 this Court on the statement made by

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someone on sick bed held as follows: “…it is well established in our law of evidence that a statement made by a person in imminent fear of death and believing at the time it was made that he was going to die is admissible as a dying declaration.” See also; Akinife Vs The State (1988) 3 NWLR (Pt.83); Okokor Vs The State (1967) NMLR 189. There is no doubt that the testimony of PW1 as to what the deceased told her about the persons who had attacked her and given their names may amount to hearsay evidence and may not ordinarily be admissible, but when same is taken together with other piece of evidence adduced by the prosecution, it amounts to res gestae, being facts relevant to the fact in issue, therefore admissible and should be admitted. See; Arisa Vs. The State (1988) 7 SC (Pt.1) 52 at 68. The English case R vs. Carnall (1995) Crim, LR 944 which was referred to in the sister case is all fours with the instant case.”
​The evidence of PW3 that he asked the deceased about what happened to him and the deceased said the appellant hit him on his head with something was not discredited under cross – examination. The evidence of PW1 and PW2 that blood was

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coming out from the mouth and nose of the deceased was confirmed by the evidence of PW4 and exhibit A, the medical report that the cause of the deceased’s death was haemorrhage resulting from fracture of the skull and other injuries. The circumstances and the condition of the deceased described by PW1 – PW4 leaves no doubt as to the fact that the deceased must have believed that he was in danger of approaching death though he may have entertained hope of recovery at the time he was telling PW3 about what the appellant did to him. From the entire evidence on record, all the conditions for the admissibility of the statement of the deceased made to PW3 were fully satisfied. The Court below was right to rely on Section 40 of the Evidence Act, 2011 and the case of Akpan v. State (1992)5 NWLR (PT.248) 439 to admit and rely on the testimony of PW3 as to what the deceased told him as a dying declaration being an exception to the hearsay rule.

​When the statement of the deceased to PW3 is taken together with the appellant’s statement, the evidence of PW4, the medical doctor who performed the autopsy on the deceased and exhibit A, his written

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report which were not discredited under cross-examination, any doubt about the cause of the deceased’s death is erased. Though PW4 was asked under cross examination whether the injury on the deceased can be self inflicted like someone falling from a tree. He said it is possible. The question itself is contradictory. Self inflicted injury is an injury knowingly inflicted on self while an injury which results from falling from a tree cannot be said to be self inflicted injury unless a person knowingly jump from a tree. There is no scintilla of evidence on record to show that between the time PW1, PW2 And PW3 saw the deceased lying on the ground with blood coming out of his mouth and nose and the time the villagers contributed money and took him to the hospital, he fell from a tree or that he inflicted the injury on his head himself. The statement on pages 17-18 referred to by the appellant’s counsel was made by Iruka Orji who was not called as a witness not by Obinna Nwobia, PW1. The law is settled that an extra-judicial statement which forms part of the proof of evidence but not properly tendered and admitted as an exhibit before the Court cannot be

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relied on by the Court. Even if there are contradictions between the evidence of PW3 and exhibit B, the appellant’s confessional statement as to the reason for the appellant’s act and as to who between PW2 and PW3 arrived at the scene of the crime first, they are not material contradictions. A material contradiction is one that relates to the main issue in question or an ingredient of the offence charged. The law is settled that it is not every minor contradiction in the evidence of witnesses or the case of the prosecution that is fatal to the prosecution. See GALADIMA V. STATE (2017) LPELR – 41909 (SC) AT 49 (C-D). SHUAIBU V. STATE (2017) LPELR-42100(SC) AT 20(B-D). For whatever reason, whether because the deceased and the appellant fought over a debt or because the deceased held the appellant’s penis which made him to faint, the appellant clearly and unequivocally admitted or confessed that he hit the deceased on his head with a stick. The contradiction is therefore rendered irrelevant. See LALAPU V. C.O.P (2019) 16 NWLR (PT. 1699) 476 AT 495 (H – B) where the Supreme Court held that where in a criminal case, there is a

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contradiction in the prosecution’s case but the accused steps in and admits the commission of the offence, the contradiction is rendered irrelevant.

When the prosecution sought to tender the statement of the appellant as an exhibit, an objection was raised as to its voluntariness. The Court below ordered a trial within trial. In a considered ruling delivered on 6/6/2016, the Court overruled the objection for lacking in merit. There is no appeal against that ruling. Therefore the fact that the confessional statement of the appellant was made voluntarily is not an issue before this Court. It is trite law that a voluntary and unequivocal confession alone is sufficient to ground conviction. Section 28 of the Evidence Act defines a confession as an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. See STATE V. YAHAYA (SUPRA). OPEYEMI V. STATE (2019) 17 NWLR (PT. 1702) 403. Notwithstanding the finding of the Court below that the appellant’s statement was voluntarily made, the Court subjected the statement to the tests recommended by law to ascertain its truthfulness and

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veracity. Here is what the Court said at page 116 – 118 of the record:
“The first test is whether there is anything outside the confession to show that it is true. From the evidence led, there are several pieces of evidence. One is exhibit C which is the stick allegedly used in striking the deceased on the head which gradually led to his death. Two is the evidence of the PW4, the medical doctor who performed autopsy on the body of the deceased to the effect “that the injury on the forehead of the deceased can be caused by hitting blunt instrument like stick, rod etc on the affected body”. Three, the deceased’s dying declaration as stated by the PW3.
The 2nd test is whether the confession is corroborated. This Court will answer in the affirmative. Firstly, the medical report (Exhibit A) corroborates the confession to the effect that the deceased died from the hitting of blunt object on his head. Secondly, Exhibit C corroborates the use of blunt object to kill the deceased. Thirdly, Exhibits D, D1 – D5 reveal the actual death of the deceased as contained in the accused person’s confession. Fourthly, the dying

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declaration of the deceased as revealed by the PW3 in his testimony is also corroborative.
The 3rd test is whether there are relevant statements made in it of facts, true as far as they can be tested. The answer is still in the affirmative. The revelation of how the deceased was killed as contained in Exhibit B is the same with how the deceased died, namely, that the deceased died as a result of hitting of stick on his head by the accused person.
The 4th test is whether the prisoner was one who had the opportunity of committing the murder. The answer is still in the affirmative. PW1, PW2 and PW3 saw the accused and the deceased immediately after the deceased was seen with blood rushing out of his nose and mouth. Although they were not there when the accused struck the deceased down. It was also unchallenged in evidence that the PW3 advised the accused to take the deceased to hospital.
The 5th test is whether the accused person’s confession is possible. The answer is positive. The confession tallied with the evidence led by the prosecution.
Finally the 6th test is whether the confession is consistent with other facts which have been

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ascertained and have been proved. The answer is still in the affirmative. The confession as to how the deceased died tallied with the evidence led by the prosecution.
In view of the above it is the belief of this Court that the prosecution has successfully linked the death of the deceased to the act of the accused person.”

The Court below rightly examined the appellant’s statement in the light of other credible pieces of evidence adduced by the prosecution and came to the right conclusion that the prosecution successfully linked the death of the deceased to the act of the appellant.

​On the third ingredient of murder, the appellant’s counsel forcefully argued that the Court below ought to have attached no probative value to the confessional statement of the appellant, exhibit B because it was not correctly recorded. In support of the argument he referred to the evidence of PW5 (the police man that recorded the statement) that the appellant told him that he was provoked by the deceased and that it was the provocation that made him to hit the deceased which according to him is not contained in exhibit B. That submission is not

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correct because the allegation of the appellant that the deceased held his penis was recorded in the statement. The defence of the appellant in his testimony before the Court was an outright denial of the entire event. He said he has never had any problem with anybody called Ndugo and does not know Simon Ndugo. Though the appellant’s oral testimony violently contradicted his extra-judicial statement, the Court treated the statement as raising a defence of provocation and considered whether the defence was made out by the appellant. This is what the Court said at pages 119-121 of the record:
“From Exhibit B, the accused is implying that he hit the head of the deceased with a stick for having held up his penis which made him to faint. Can the deceased act of holding the penis of the accused justify the act of the accused as provocation? This now leads us to the determination of what Provocation implied in law. Thus in Edoho v. State (2010) 14 NWLR (PT.1214)652 S.C.(PP.25-26 PARAS D-A) stated the elements which must be present for provocation to constitute a defence.

From Exhibit B, the confessional statement of the

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accused, it is clear that the act of the accused was not done on the spur of the moment and that the act complained of was done at the time passion had cooled off thus making this defence unavailable.
The type of stick (Exhibit C) used by the accused in his clear consciousness to strike the deceased is fatal. Assuming without conceding that the accused did not mean death for the deceased, he certainly meant to cause him grievous bodily harm by the type of stick used to strike the deceased. Moreso, the accused was stone-hearted when he was advised to take the deceased to hospital for medication. The accused maintained this callousness and indifference until the villagers were summoned by the traditional ruler to contribute money to take the deceased to the hospital to save the deceased’s life. Unfortunately, the deceased died in the hospital a week after the attack. In the circumstance, there is overwhelming evidence to believe that the act of the accused was intentional with the knowledge that death or bodily harm was its probable consequence.”

Sections 306, 315 and 316(b), of the Criminal Code Law of Ebonyi State provide that:

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  1. “It is unlawful to kill any person unless such killing is authorized or justified or excused by law.
    315. Any person who unlawfully kills another is guilty of an offence which is called murder or manslaughter, according to the circumstances of the case.
    316. Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say:
    (b) If the offender intends to do to the person killed or to some other person some grievous harm.”
    “Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say-
    (1) if the offender intends to cause the death of the person killed, or that of some other person;
    (2) if the offender intends to do to the person killed or to some other person some grievous harm;
    (3) if death is caused by means of an act done in the prosecution of an unlawful purpose which act is of such a nature as to be likely to endanger human life;
    (4) if the offender intends to do grievous harm to some person for the purpose of facilitating the commission of an offence which is such that

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the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such offence;
(5) if death is caused by administering any stupefying or overpowering things for either of the purposes last aforesaid;
(6) if death is caused by willfully stopping the breath of any person for either of such purposes, is guilty of murder.
In the second case it is immaterial that the offender did not intend to hurt the particular person who is killed.
In the third case it is immaterial that the offender did not intend to hurt any person. In the three last cases it is immaterial that the offender did not intend to cause death or did not know that death was likely to result.”
The appellant intentionally hit the deceased on his head with a stick. In the entire circumstances of this case, there is no doubt the appellant intended to cause grievous harm to the deceased. Death was a foreseeable consequence of the appellant’s act. See AFOSI V. STATE (2013) LPELR-20751 (SC) AT 33-34 (C-D) where the Supreme Court per Ariwoola JSC held that:

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“(1) Before an act can be murder, it must be aimed at someone and must in addition be an act committed with one of the following intentions, the test of which is always subjective to the actual accused person. (i) the intention to cause death: (ii) the intention to cause grievous bodily harm, that is, really serious injury; (iii) where the accused person knows that there is a serious risk that death or grievous bodily harm will ensue from his acts, and commits these acts deliberately and without lawful excuse, the intention to expose a potential victim to that risk as the result of those acts. It does not matter in such circumstance whether the accused desires those consequences to ensue or not and in none of these cases does it matter that the act and the intention were aimed at a potential victim other than the one who succumbed. See: Director of Public Prosecution v. Smith (1960) 3 All ER 161. (2) Without an intention of one of these three types the mere fact that the accused conduct is done in the knowledge that grievous bodily harm is likely or highly likely to ensue from his conduct is not by itself enough to convert a homicide into the crime of murder.” See: Hyam v. Director of Public Prosecution ​

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(1974) 2 All ER 41 at 43, 56, per Lord Hailsham of St Maryebone.”

For a defence of provocation to succeed, the act which causes provocation must be grave and sudden and must be such as to deprive the accused the power of control. The act which causes the death of deceased must have been done in the heat of passion caused by sudden provocation and before there is time for passion to cool. See Section 318 of the Criminal Code Law of Ebonyi State which provides that:
318. “When a person who unlawfully kills another in circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter only.”
DAJO V. STATE (2018) LPELR – 45299 (SC) AT 22 – 24 (F – E). In GALADIMA V. STATE (SUPRA) AT 19 – 20 (C-A) the Supreme Court per SANUSI JCA stated the essential elements required to establish the defence of provocation as follows:
“The defence of provocation avails on accused person who killed his victim in heat of

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passion before the time to cool down. For the defence of provocation to benefit an accused person and also for same to be upheld, the accused must clearly show or establish the under mentioned conditions:- (a) That the act he relied on is actually Provocative, (b) That the provocative act deprived him of self control, (c) The provocative act came from the deceased. (d) The sudden fight between the accused and the deceased was instantaneous and continuous with no time to cool down; and (e) The force used by the accused in repelling the provocation is not disproportional in the circumstance. See Nwede v State (1985) 3 NWLR (pt.13) 444; Akalezi v State (1993) 3 NWLR (pt.273) 1; Okonji v State [1987) 1 NWLR (pt.52) 659; Ekpenyong vs. State (1993) 5 NWLR (pt. 295) 513. Frank Uwagboe v The State (2008) 12 NWLR (pt. 1102) 627.”

​According to the appellant, the sudden provocation by the deceased which made him to hit the deceased with a stick happened in the presence of Iruka Orji, Chibuike Orji and Obinna Nwobia. The prosecution called the last two persons as PW1 and PW2. The evidence of PW1 and PW2 was that they were not there when the appellant and the deceased

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started fighting. They went to the scene when they heard noise from that direction and they met the deceased already on the ground with blood coming out of his mouth and nose. When they testified, they were not confronted with the allegation that the deceased held the appellant’s penis and that the appellant fainted in their presence. The position of the appellant at the Court below and in this Court is that the evidence of PW1 and PW2 as to what happened to the deceased is hearsay. The part of their evidence which the Court below believed and relied on, rightly in my view, is that they saw the deceased lying on the ground and the appellant was there. The deceased told PW3 that the appellant hit him on his head with stick because they fought over a debt. That was in the presence of the appellant. There is no evidence on record to show that the appellant reacted or denied the narration of the deceased to PW3. The story that the deceased held the appellant’s penis is suspect. Even if the story of the appellant that the deceased held his penis is believed, there was enough time for passion to cool down between the time the appellant stated that he

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fainted and the time he woke up and recovered from the shock. The Court below was right in my view when it rejected the defence of provocation.

The appellant’s counsel also submitted that defence of self defence avails the appellant because he hit the deceased with a stick once to defend himself from another attack for purposes of protecting his life as he was at the risk of being killed and the only alternative was to hit the deceased. Section 26 of the Criminal Code Law of Ebonyi State provides that:
26. “Subject to the express provisions of the Code relating to acts done upon compulsion or provocation or in self defence, a person is not criminally responsible for an act done or omission made under such circumstances of sudden or extraordinary emergency that an ordinary person possessing ordinary power of self-control could not reasonably be expected to act otherwise.”
Also Section 33(2) of the 1999 Constitution (as amended) provides that:
(2) “A person shall not be regarded as having been deprived of his life in contravention of this section, if he dies as a result of the use, to such extent and in such

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circumstances as are permitted by law, of such force as is reasonably necessary-
(a) For the defence of any person from unlawful violence or for the defence of property;
(b) In order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or
(c) For the purpose of suppressing a riot, insurrection or mutiny.”
Thus the law allows a victim of an unprovoked and unlawful attack to defend himself and in doing so to use such force as is reasonably necessary to ward off the attack. If the unprovoked attack is likely to cause him grievous harm or even death or he is reasonably in apprehension of the same, he is entitled to use such force available to preserve him from such grievous harm or death. A successful plea of self-defence totally exonerates an accused person. In OMOREGIE V. STATE (2008) LPELR-2658(SC) AT 24-25 (F-D), the Supreme Court Per MUKHTAR, J.S.C. stated the ingredients of self defence as follows:
“Basically, self-defence that will have any impact on a case to favour an accused person must be such that the action taken by the accused was unavoidable. Authorities abound on when the defence of

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self-defence can avail an accused person, and these authorities contain the ingredients of self-defence. These ingredients are: (a) the accused must be free from fault in bringing about the encounter. (b) there must be present an impending peril to life or of great bodily harm either real or so apparent as to create honest belief of an existing necessity. (c) there must be no safe or reasonable mode of escape by retreat, and (d) there must have been a necessity for taking life. See Rtd. Captain Jairo Musel Liya v. The State (1998) 2 NWLR (Pt.538) 397. In order to sustain the defence, all the above ingredients must co-exist and be established. See Kwaghsir v. State (1995) 3 NWLR (Pt.386) 651, and Nwambe v. State (1995) 3 NWLR (Pt.384) 385.”
I have examined the appellant’s statement, exhibit B and his evidence before the Court, there is no evidence whatsoever from which the Court below could have inferred or consider a defence of self defence. In the appellant’s statement, he never said the deceased attempted to attack or do anything to him after he (the appellant) woke up. There was absolutely no reason for the appellant to believe that he

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could not leave the scene or that he had no reasonable means of escaping from the deceased or that there was a necessity to cause grievous harm to the deceased. The statement on pages 39 and 40 of the record which the appellant’s counsel referred to was not tendered as an exhibit before the Court below. As stated earlier in this judgment, an extra judicial statement which forms part of the proof of evidence in an information but not properly tendered and admitted as an exhibit before the Court cannot be considered or relied on by the Court. There was no basis for the Court to consider the defence of self defence. An address no matter how brilliant does not take the place of legally admissible evidence.
​The Court below concluded its judgment at page 123 of the record by stating that:
“This Court has veered into the defence of provocation as an implied defence without success. There is neither express nor any other implied defence in the case of the accused. Exhibit B, the confessional statement of the accused without any other evidence is enough to ground the conviction of the accused person.
In view of the above decided authorities I

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have taken pains to know whether there could be any defence which can be explored for the benefits of the accused person namely, accident, self defence, provocation, psychosis and irresistible impulse to kill but I find none.
In view of the foregoing, I am hereby constrained to hold that the accused person, Andrew Igboji Egbe, is guilty of murder of one Simon Ndugo contrary to Section 319 (1) of the Criminal Code Law Cap. 33 Vol. 1, Laws of Ebonyi State of Nigeria.”
I am in full agreement with the verdict of the Court below. This appeal has no merit. It is hereby dismissed. The judgment of the Court below is hereby affirmed. The conviction and sentence passed on the appellant are affirmed.

​IGNATIUS IGWE AGUBE, J.C.A.: The lead Judgment of my learned brother M. O. BOLAJI-YUSUFF, JCA was made available to me before now and I had the advantage of reading same. I have nothing to add to the well reasoned and articulate Judgment which I hereby adopt as mine in also concluding that the learned trial Judge was right to have held that the Prosecution proved its case beyond reasonable doubt. I also endorse the reasoning and conclusion of my learned

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brother that the Appeal lacks merit and same is accordingly dismissed.
The conviction and sentence imposed on the Appellant is hereby affirmed.

IBRAHIM ALI ANDENYANGTSO, J.C.A.: Having read in draft the judgment just delivered by my learned brother HON. JUSTICE M. O. BOLAJI YUSUFF, JCA, I hereby totally agree with the reasoning and conclusion therein. The appeal lacks merit and qualifies for dismissal. I too dismiss same and affirm the decision of the lower Court convicting and sentencing the Appellant as charged.

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Appearances:

U. Nwwaedu, with him, Nwankwegu and P. C. Ogbonna For Appellant(s)

O. O. Ude, Chief State Counsel, Min. of Justice Ebonyi State For Respondent(s)